FSM SUPREME COURT
APPELLATE DIVISION (Pon.)
Cite as Dores v. FSM ,
3 FSM Intrm. 155 (App. 1987)

[3 FSM Intrm. 155]

ANDONIO DORES,
Appellant,

v.

FEDERATED STATES OFMICRONESIA,
Appellee.

   APPEAL CASE NO. P1-85
(reversing 1 FSM Intrm. 580)

OPINION

Argued:  September 18, 1985
Decided:  February 6, 1987

Before:
     Hon. Richard H. Benson, Associate Justice, FSM Supreme Court;
     Hon. Mamoru Nakamura, Temporary Justice, FSM Supreme Court*;
     Hon. Herbert D. Soll, Temporary Justice, FSM Supreme Court;**

*Chief Justice, Republic of Palau Supreme Court
**Judge, Commonwealth Trial Court of the Northern Mariana Islands (at the time of oral argument and decision of this case).

[3 FSM Intrm. 156]

APPEARANCES:
     For the Appellant:    Public Defender Office
                                        P.O. Box 238
                                        Kolonia, Pohnpei 94941

     For the Appellee:     State Attorney's office
                                        Pohnpei State Government
                                        Kolonia, Pohnpei 96941
 
*       *       *       *

HEADNOTES
Criminal Law And Procedure - plea agreement
     A plea agreement is not fixed until the Court has acted upon it in all particulars and has fixed all conditions and explained them to the defendant.  Dores v. FSM, 3 FSM Intrm. 155, 158 (App. 1987).

Criminal law And Procedure - plea agreement
     The defendant may withdraw from a plea agreement at any time prior to the Court's action on every element on the agreement.  Dores v. FSM, 3 FSM Intrm. 155, 158 (App. 1987).

*       *       *       *

COURT'S OPINION
PER CURIAM:
     The issue posed by this appeal is whether a trial court may accept a guilty plea offered under a plea agreement when the defendant broke a condition proposed under the agreement before the court had acted to set the period during which the condition would apply.

     We hold that the setting of conditions and the explanation of them to the defendant by the court is an integral part of the acceptance of a plea agreement and that the defendant may withdraw from his agreement at any time prior to the court's action on every element in the agreement.  Accordingly the case is remanded to the trial court so that the defendant may be allowed to reconsider his plea of guilty under the plea agreement.

     The defendant was accused of assault with a dangerous weapon and of aggravated assault upon each of two alleged victims.  The defendant and the government entered into a written plea agreement by which the defendant would plead guilty to Count I, assault with a dangerous weapon upon one of the victims, and to Count II, assault and battery upon the other victim.  The

[3 FSM Intrm. 157]

court was to defer acceptance of the former plea.  The government agreed to dismiss other charges set forth in the Information.

     Two paragraphs of the agreement provide:

4.  The Court shall defer acceptance of the guilty plea to Count I of the Information for a period that the Court deems appropriate. During that period, the   Defendant shall abstain from all criminal conduct.  The Court may impose additional conditions regarding the Defendant's conduct, including prohibiting theconsumption of alcohol, during that period.

6.  If the Defendant complies completely with the terms of this agreement and those imposed by the Court    for the period defined by the Court, then at the end of  such period the State shall move to dismiss Count I of    the Information.  If, however, at any time the Defendant violates the condition imposed by this agreement or by the Court, then the Court Sua Sponte or on motion of the State may accept the guilty plea to Count I of the Information and impose its sentence.

     The court accepted the agreement in open court on May 9, 1984, accepted the plea of the defendant to assault and battery, received the defendant's plea to assault with a dangerous weapon, and, addressing defendant, said it "will defer acceptance of your guilty plea of the charge of assault with a dangerous weapon subject to your satisfactory fulfillment of conditions to be announced in sentencing."  Transcript at 40.

     The court then announced that the sentencing would take place that afternoon at 3:00 o'clock.  This did not happen, and the record is silent as to any reason for the postponement.

     Sentencing was held July 3, 1984.  At the beginning of the hearing on that day, the government informed the trial court that the defendant had been convicted in the Pohnpei State Court of assault and battery for an incident occurring on May 13, 1984.  The defendant was then sentenced for assault and battery on the plea entered May 9, 1984, but no action was taken with respect to the deferred Count I.

     On July 11, 1984 the government moved for an order accepting the guilty plea to Count I made May 9, 1984 on the ground that the conviction in the State Court for the May 13, 1984 incident violated the condition of the plea agreement.

     On July 18, 1984 the judgment was entered which included the conditions imposed for the deferred acceptance of the guilty plea and added the court's

[3 FSM Intrm. 158]

specification of the period for which the conditions would apply.  It reads:

DEFERRAL OF ACCEPTANCE OF GUILTY PLEA
The Court defers acceptance of the defendant's plea  of guilty to the crime of assault with a dangerous weapon upon Herlino Makaya in violation of 11 F.S.M.C. 919 on February 15, 1984.  Deferral of Court action ondefendant's plea of guilty to the crime of assault with a dangerous weapon is subject to the following conditions, which shall remain in effect for a period of one year   after release of the defendant upon completion of the sentence set forth above:

1)  Andonio Dores shall not violate any ordinance    or law of a municipality, the State of Pohnpei, or the Federated States of Micronesia.

2)  Andonio Dores shall not enter any bar or tavern, or purchase any alcoholic beverage at any store, or consume any alcoholic beverage, anywhere in the Federated States of Micronesia.  The defendant is however permitted to drink Pohnpeian Sakau.

3)  Andonio Dores shall not directly or indirectly  act towards or communicate with Iowana Makaya, Herlino Makaya or any of their relatives in a negative or harmful manner.

     The government's motion that the plea to Count I be accepted because condition 1 had been broken was opposed by the defendant, but after full consideration the trial court granted the motion.

     The defendant was thereafter sentenced.

     This appeal followed.

     The defendant asserts that the provision in the plea agreement that he "abstain from all criminal activity" did not become effective until the court fixed the period during which the acceptance of the plea was to be deferred.

     The government's contention is that provision became enforceable on May 9, 1984 at the time the court accepted the plea agreement and the defendant tendered his plea of guilty.

     A plea agreement is not fixed until the court has acted upon it in all particulars. Until the court has fixed all conditions and explained them to the defendant there is no firm agreement and the defendant is entitled to decline this agreement.  The government may argue that the period during which

[3 FSM Intrm. 159]

conditions may last was understood by the defendant to be the time eventually set by the court and that the defendant would have accepted this term.  However, this should not be a subject of surmise or assumption.

     A basic concept in the criminal justice system is that the defendant be given "due process."  Included within the meaning of the term is that the process for the taking of individual liberty be unambiguous.  In the case in which a defendant pleads guilty to an offense, thereby waiving his right to stand trial and yielding any defense, the steps involved which lead to the loss of liberty must be understandable to the defendant at each stage of the proceedings.  A plea agreement may leave elements of the sentence to the discretion of the court.  If this is entirely clear and explained by the court to the defendant, the defendant is bound at the time the agreement is approved by the court.  But this is not unambiguous in the government's version of the plea agreement.

     The defendant compares the action of the court to one in which the  court has refused a plea agreement, which results in the accused being able to withdraw his plea.  The government suggests that the proper avenue, if this court finds any merit in the defendant's contentions, is to permit the defendant to withdraw his plea of guilty.  We agree.

     The defendant is therefore to be given the opportunity, within a period of time set by the trial court, to withdraw his pleas of guilty to Counts I and II.  If he does not so move, the judgments of conviction for assault and battery and assault with a dangerous weapon are affirmed. if he does move to withdraw his pleas, the trial court, in granting the motions, may entertain a government motion to vacate the dismissals of all remaining counts of the Information.  In granting the motion to withdraw the plea, the court shall also order that the sentence on Criminal Case No. 1984-525 shall run from the date it was imposed.

     The case is therefore remanded to the trial court for proceedings in accordance with this opinion.

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